Catch-22 for RU486

Published: July 19, 1992

The Bush Administration keeps doing whatever it can to make safe abortions inaccessible. The latest example is the Food and Drug Administration's arbitrary exclusion of the French abortion pill RU486 from its policy of allowing travelers to bring small amounts of unapproved drugs with them when they return from abroad.

In defending the seizure of a small dose of pills from a traveler, Leona Benten, the Justice Department makes much of the fact that the drug's French manufacturer has not even applied for F.D.A. approval to market the product in the United States. It's a Catch-22 argument. The pharmaceutical company, Roussel Uclaf, would be more than willing to sell the product here if not for fears about boycotts and demonstrations from anti-abortion activists and the hostile climate fostered by the Bush Administration.

The F.D.A. allows small-dose imports for personal use of unapproved drugs from anti-wrinkle creams to cancer and AIDS-related treatments. But in timid response to anti-abortion members of Congress, and even though the drug appears safe in foreign studies, the agency specifically excluded RU486.

Last week in New York's Federal District Court, Judge Charles Sifton found that the regulators had abused even the broad discretion the law gives them. But his order to return the pills was stayed by the Court of Appeals, and the Supreme Court refused on Friday to reinstate the judge's order.

Ms. Benten, eight weeks pregnant, cannot wait any longer to use the drug and is thus deprived of its benefits, which include home privacy and avoiding hospitals and clinics. She will now undergo a surgical abortion. But she has helped advance the interests of many other women.

Her lawsuit already has exposed the F.D.A.'s disorderly, politically shaped patchwork of import exemptions. Her suit and others to follow may yet shame or force the agency into orderly rulemaking. More cases would also make clear that there is strong demand in this country for the kind of safe, accessible abortion that this pill is providing abroad.